Citation Nr: 18143255 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 10-23 292 DATE: October 18, 2018 ORDER Entitlement to service connection for lumbar spine degenerative disc disease and degenerative joint disease is granted. FINDING OF FACT The most probative evidence of record supports a finding that the Veteran’s lumbar spine degenerative disc disease and joint disease had onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbar spine degenerative disc disease and joint disease have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the Air Force from June 1969 until April 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board notes that during the course of the appeal, the Veteran moved from Connecticut to Georgia. The RO in Atlanta certified the appeal to the Board. In April 2014 the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. The appeal was remanded in September 2013, August 2014, and July 2016 for further development. The development is complete and the Board will proceed to adjudicate the merits of the claim. February and October 2018 VA Healthcare System (VHA) opinions were obtained. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with her claim decided herein are moot. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including degenerative disc disease (arthritis), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that his low back symptoms began during service and have existed since that time. Specifically, at the April 2014 Board hearing the Veteran stated he hurt his back in-service moving boxes. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A November 2006 VA treatment record showed a diagnosis of degenerative disc disease. Additionally, an October 2014 VA examination confirmed degenerative arthritis of the spine. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s service treatment records (STRs) showed several complaints of back pain. Additionally, an October 1970 STR showed a diagnosis of chronic lumbosacral strain. Third, the Board finds that the most probative evidence of record supports a finding that the low back symptoms had an onset in service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran received a VA examination in October 2014. The examination included an x-ray with findings of degenerative disc disease and degenerative joint disease. The examiner opined that it was less likely than not that the Veteran’s back condition was related to his service, noting that the Veteran injured his back prior to service, including a football injury and lifting a heavy object while he was a teenager. The examiner further discussed that at the Veteran’s medical discharge from service in 1971 his back disability was noted to not be permanently aggravated and upon leaving service there was no evidence of regular and significant treatment for his low back problem. The examiner concluded that it was more likely that the Veteran’s moderate degenerative joint disease was consistent with his age. The October 2014 examination did not presume the Veteran sound. The Veteran did not have any injuries noted upon entry to service and its presumed sound. Every Veteran shall be taken to have been in sound condition when accepted for service except as to defects, infirmities, or disorders noted at the time of acceptance; or, where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment, and was not aggravated by the Veteran’s period of active service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. To rebut the presumption of soundness, the burden falls on VA to demonstrate with clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). The October 2014 examination opinion is based on an incorrect legal standard and is given low probative value. In a January 2017 VA addendum opinion, the opinion provider determined that the low back disorder was less likely as not related to service. The examiner referred to his prior October 2014 opinion for the remainder of the opinion, stating that as the Veteran’s MRI of the back showed minimal problems 35 years after he left the military, such findings were consistent with age and not with his military service. The examiner did not address the Veteran’s lay statements regarding continuous symptoms since service discharge. Where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Accordingly, the Board affords the opinion low probative value. A February 2018 VHA opinion was obtained. The doctor opined it was at least as likely as not that the Veteran’s chronic low back strain (low back symptoms) had an onset in service. The opinion provider listed the onset as October 1970. The opinion provider noted that by definition, a low back strain can be used interchangeably with low back symptoms where there is no other identifiable etiology for back pain. The opinion provider stated it is less likely that the onset of degenerative disc disease was related to active service, noting that it was more likely that the MRI findings in 2006 were age-appropriate wear and tear unrelated to the Veteran’s active service. A clarifying opinion was requested to determine if degenerative disc disease is a progression of chronic lumbar strain. An October 2018 VHA addendum opinion was obtained. The doctor opined that it is more likely than not (greater than 50 percent probability) that the Veteran’s lumbar spine degenerative disc disease is a progression of the chronic lumbar strain. The doctor explained that low back strain is often used as a general diagnosis for low back symptoms that are not otherwise more clearly specified. The doctor determined that the subsequent diagnoses of degenerative disc disease and degenerative arthritis of the spine are more specific than, but by no means distinct from or mutually exclusive of, the diagnosis of low back strain. The Board finds the February 2018 and October 2018 VHA opinions to be probative as they were based on a thorough review of the record, cited to relevant evidence, addressed the conflicting evidence of record, and were supported by a well-reasoned explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value is whether the examiner was informed of the relevant facts in rendering a medical opinion); See Stefl v. Nicholson, 21 Vet. App. at 124 (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). As noted above, the earlier VA examinations were inadequate. Accordingly, the probative evidence of record indicates that service connection is warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel